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In terms of Patent Regulation 90(1), a patentee must serve and file a counterstatement to an application for revocation within two months of its service and lodging, failing which the patent will be deemed revoked.

Buzbee (Pty) Ltd v. The Registrar of Patents and Two Others was an appeal of the Registrar of Patent’s decision to allow a one-day extension of time, ex post facto, within which to file a counterstatement in response to an application for revocation of South African patent 2002/8482. In terms of Patent Regulation 90(1), a patentee must serve and file a counterstatement to an application for revocation within two months of its service and lodging (or on extension of that period), failing which the patent will be deemed revoked.

In this case, the patentee’s attorney had inadvertently omitted to serve and file the counterstatement within the prescribed time period, but eventually filed it the day after the deadline had expired. The appellant (as applicant for revocation) was unwilling to agree to an extension of time for the purposes of filing the counterstatement, which caused the patentee to apply to the registrar for an extension.

The registrar granted the extension, despite the appellant’s protest that any decision to grant the extension of time after expiry of the stipulated deadline was invalid. This led to the present appeal before the Court of the Commissioner of Patents.

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